A-1817228
Decided by the Board August 5, 1953
Crime involving moral turpitude — Burglary, second degree (secs. 459 and 460 California Penal Code) — Assault, second degree (subdivision 4, sec. 242 New York Penal Law).
(1) The crime of burglary, second degree, with intent to commit theft (sections 459 and 460 California Penal Code) is a crime involving moral turpitude.
(2) The crime of assault, second degree, with evil (criminal) intent (subdivision 4 of section 242 of the New York Penal Law) is a crime involving moral turpitude.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1917 — Entered by false and misleading statements.
Act of 1917 — Likely to become public charge at time of entry.
Lodged: Act of 1917 — Afflicted with loathsome contagious disease at time of entry.
Act of 1917 — Crime within 5 years, to wit: Burglary, second degree.
Act of 1917 — Sentenced more than once, to wit: Burglary, second degree, and assault, second degree.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of the Assistant Commissioner dated May 13, 1952, directing deportation. Respondent, a 43-year-old native and citizen of Italy, last entered the United States at San Ysidro, Calif., on February 1, 1933, to resume his United States residence. On that occasion, respondent was admitted as a United States citizen after going to Mexico on August 1, 1932, to obtain employment. Respondent's first entry occurred at New York on May 29, 1917, when he was admitted for permanent residence. Respondent served in the United States Army from July 1, 1925 to August 1, 1931, at which time he was dishonorably discharged.
Since respondent was not in possession of the necessary visa at the time of his last entry, he is clearly deportable as an alien entering without a visa (secs. 13, 14, act of 1924). The Immigration Service held that respondent falsely represented himself as a citizen on that occasion and is deportable as an alien entering without inspection by false and misleading statements (sec. 19 (a), act of 1917). Because respondent voluntarily testified to this fact, this charge is also sustained.
Respondent is allegedly deportable as an alien sentenced more than once to imprisonment for one year or more for convictions in this country for crimes involving moral turpitude — burglary, second degree, and assault, second degree (section 19 (a), act of 1917). On February 15, 1933, respondent was convicted on a plea of guilty in the Superior Court, San Diego County, Calif., of the crime of burglary, second degree. He was granted 5 years' probation, conditioned on his spending the first year of this period in the San Diego County Jail. The information stated that respondent and another "did willfully, unlawfully, feloniously and burglariously enter a certain building (a market) * * * with intent then and therein to commit the crime of theft." According to the record, respondent's probation was revoked on July 13, 1934, when the court ordered his imprisonment at San Quentin State Prison; respondent was released on March 26, 1936.
The pertinent portions of the California Penal Code provide as follows:
SEC. 459. Burglary defined. — Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, mine, or any underground portion thereof, with intent to commit grand or petit larceny or any fellony is guilty of burglary. (Enacted 1872; Amended by Code Amdts. 1875-76, p. 111; Stats. 1913, p. 228)
The phraseology of sec. 459 is substantially the same now as it was in 1934. The additions are incidental and relate to a broadening of the coverage of the places where the crime of burglary may occur (warehouse, trailercoach, vehicle with locked doors, etc.) (Stats. 1947, ch. 1052, sec. 1).
Sec. 460. Degrees of burglary. — (1) Every burglary of an inhabited dwelling-house or building committed in the nighttime, and every burglary, whether in the daytime or nighttime, committed by a person armed with a deadly weapon, or who while in the commission of such burglary arms himself with a deadly weapon, or who while in the commission of such burglary assaults any person, is burglary of the first degree; (2) all other kinds of burglary are of the second degree; (3) this section shall not be construed to supersede or affect section 464 of the Penal Code. (Enacted 1872; amended by Code Amdts. 1875-76, p. 112; Stats. 1923, p. 747.)
SEC. 461. Punishment for burglary. — Burglary is punishable as follows:
(1) Burglary in the first degree: by imprisonment in the State prison for not less than 5 years; (2) Burglary in the second degree: by imprisonment in the county jail not exceeding 1 year or in the State prison for not less than 1 year or more than 15 years. (Enacted 1872, as sec. 460; amended (and renumbered sec. 461) by Code Amdts. 1875-76, p. 112; Stats. 1923, p. 270; Stats. 1925, p. 235; Stats. 1933, p. 2216.)
The California courts have held that the intent to commit robbery includes an intent to commit larceny and to permanently deprive the owner of his personal property. People v. Bayne, 136 Calif. App. 341, 28 P. (2d) 1068 (1934); People v. Brown, 105 Calif. 66, 38 Pac. 518 (1894); People v. Crowley, 100 Calif. 478, 35 Pac. 84 (1893). Hence, since moral turpitude inheres in the criminal intent and because the information stated that respondent had an intent to commit theft, respondent's conviction for burglary second degree under sections 459 and 460 is definitely a crime involving moral turpitude. Cf., Matter of V---- T----, A-5963331 ( 2 IN Dec. 213) (B.I.A., November 17, 1944).
U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D.N.Y. 1929); U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); U.S. ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E.D. Pa., 1930).
Counsel in his brief seeks to mitigate the plea of guilty in connection with the 1933 burglary conviction through additional evidence. Counsel contends that a full explanation of the circumstances leading up to this plea should be allowed in the record. We cannot agree with counsel, for the courts have held that the record of conviction is conclusive and that it is not appropriate for the administrative or judicial group passing on the charge to go behind the judgment of conviction. Tillinghast v. Edmead, 31 F. (2d) 81 (C.C.A. 1, 1929); U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931).
On March 24, 1938, respondent was convicted on a plea of guilty in the County Court, Westchester County, N.Y. of assault, second degree. He was sentenced to imprisonment of 5 to 10 years at Sing Sing State Prison, Ossining, N.Y. According to the indictment, on May 13, 1937, respondent "with force and arms * * * did make an assault on another person with a knife." The indictment further stated that with this knife, a weapon likely to produce grievous bodily harm, he "feloniously, willfully, and unlawfully did strike, stab, beat, cut, bruise, wound and contuse" the other person.
The offense in question is defined in section 242 of the New York Penal Law, McKinney's Consolidated Laws of New York, volume 39, which provides as follows:
Assault in second degree —
A person who, under circumstances not amounting to the crime specified in section 240,
(1) With intent to injure, unlawfully administers to, or causes to be administered to, or taken by another, poison, or any other destructive or noxious thing, or any drug or medicine the use of which is dangerous to life or health; or,
(2) With intent thereby to enable or assist himself or any other person to commit any crime, administers to or causes to be administered to, or taken by another, chloroform, ether, laudanum, or any other intoxicating narcotic or anesthetic agent; or,
(3) Willfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon; or,
(4) Willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm; or,
(5) Assaults another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or of any other person, is guilty of assault in the second degree.
Although counsel contends that the courts have clearly decided that assault, second degree, in New York is not a crime involving moral turpitude, we feel that this statement by counsel is not a fair evaluation of the decisions relating to section 242. Because section 242 is a statute with severable subsections, if it is possible to determine the subsection under which the conviction occurred, the moral turpitude question can readily be settled.
See appendix.
U.S. ex rel. Valenti v. Karnuth, 1 Fed. Supp. 370 (N.D., N.Y., 1932); Matter of A----, A-5247648 (B.I.A., July 8, 1947).
It has been held by the New York Court of Appeals that both subsections 3 and 4 of section 242 require a specific criminal intent to inflict bodily injury, coexistent with the acts involved. People v. Katz, 290 N.Y. 361, 49 N.E. (2d) 482 (1943); see also, People v. Osinski, 281 N.Y. 129, 22 N.E. (2d) 311 (1939). According to the record in the instant case, respondent's conviction occurred under section 242 (4) and, hence, involved an evil intent. Therefore, because moral turpitude arises from a criminal intent, the offense defined in section 242 (4) clearly involves moral turpitude. U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D.N.Y., 1929); United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); United States ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E.D. Pa., 1930).
Assault with a deadly weapon has been held to involve moral turpitude in numerous cases. Matter of R----, 56050/167, 1, I. N. Dec. 209 (B.I.A., April 8, 1942); Matter of K----, 56138/221 (B.I.A., Nov. 12, 1943); Matter of N----, A-1779952, 2 IN Dec. 201 (B.I.A., Sept. 16, 1944); Matter of B----, A-3748822 (B.I.A., Jan. 5, 1946); Matter of O----, A-5912688, 3 IN Dec. 193 (B.I.A. 1948); Matter of P----, A-6386124, 3 IN Dec. 5 (Atty. Gen., Sept. 11 1947); Matter of G---- R----, A-4569802, 2 IN Dec. 733 (Atty. Gen., 1947). See also, 39 Op. Atty. Gen. 95 (1935).
Since the crime of burglary, second degree, in California as well as the crime of assault, second degree, in New York involves moral turpitude, the charge that respondent is an alien sentenced more than once to imprisonment for 1 year or more for convictions in this country for crimes involving moral turpitude is definitely sustained. In addition, the charge that the respondent is an alien sentenced to imprisonment for 1 year or more for a conviction in the United States within 5 years of entry for a crime involving moral turpitude, burglary, second degree, is also sustained (sec. 19 (a), act of 1917).
The hearing officer and the Assistant Commissioner have also sustained the charge that respondent is a person likely to become a public charge at the time of entry (sec. 19 (a), act of 1917), because shortly after entry respondent was arrested, tried, convicted, and sentenced to imprisonment for burglary, second degree, in California in 1933. Although there are some decisions to the contrary, it is well settled that criminal activity will not support deportation of an alien as a person likely to become a public charge. Howe v. United States, 247 Fed. 292 (C.C.A. 2, 1917); Ng Fung Ho v. White, 266 Fed. 765 (C.C.A. 9, 1920), rev. on other grounds, 259 U.S. 276 (1922); Coykendall v. Skrmetta, 22 F. (2d) 120 (C.C.A. 5, 1927); U.S. ex rel. Iorio v. Day, 34 F. (2d) 920 (C.C.A. 2, 1929).
U.S. ex rel. Medich v. Burmaster, 24 F (2d) 57 (C.C.A. 8, 1928); Browne v. Zurbrick, 45 F. (2d) 931 (C.C.A. 6, 1930); U.S. ex rel. Lehtola v. Magie, 47 F. (2d) 768 (D. Minn., 1931).
The only remaining charge is that respondent was afflicted with a loathsome or dangerous disease, syphilis, at time of entry (sec. 19 (a), act of 1917). A surgeon of the United States Public Health Service determined on August 7, 1933, that respondent had this disease at the time of his last entry on February 1, 1933. In addition, on July 24, 1933, respondent admitted that he had been afflicted with this disease for about a year and a half. Hence, this charge is clearly sustained.
Counsel has renewed the alien's request for relief through the seventh proviso to section 3 of the act of 1917. While the criminal convictions supporting the deportation charges occurred in 1933 and 1938, on March 8, 1950, respondent was convicted on a plea of guilty in the Superior Court, Los Angeles County, Calif., of assault. According to the information respondent "did willfully, unlawfully, and feloniously assault a man by means of force, likely to produce great bodily injury." He was sentenced to 90 days in the county jail.
In view of this recent conviction, we conclude that seventh proviso relief is not appropriate in the instant situation. Because respondent is deportable on criminal grounds, relief through voluntary departure is not available to him.
For the foregoing reasons, respondent is definitely deportable and the appeal must be dismissed.
Order: It is hereby ordered that the appeal be dismissed, omitting, however, as a basis for deportation the charge that the alien was likely to become a public charge at time of entry.
APPENDIX
The following cases determine that the offense set out in section 242 (3) of the New York Penal Law was a crime involving moral turpitude: In U.S. ex rel. Mazzillo v. Day, 15 F. (2d) 391 (S.D.N.Y., 1926), the court stated that the crime involved moral obloquy. In Matter of A----, A-5247648 (B.I.A., July 8, 1947), it was held that the offense clearly required evil intent and therefore involved moral turpitude.
In the following cases, the crime defined in section 242 (4) of the New York Penal Law was held to be an offense involving moral turpitude: In U.S. ex rel. Ciccerelli v. Curran, 12 F. (2d) 394 (C.C.A. 2, 1926), the court stated that "it seems to be admitted that the crime of assault in the second degree is one involving moral turpitude." Although the real question involved in U.S. ex rel. Morlacci v. Smith, 8 F. (2d) 633 (W.D.N.Y., 1925) was the construction of the word "sentence," the court stated by implication that assault in the second degree with a dangerous weapon (revolver) was in fact a crime involving moral turpitude and sustained the deportation charge. In U.S. ex rel. Pellegrino v. Karnuth, 23 F. Supp. 688 (W.D.N.Y., 1938), the court concluded that the wounding of a person through the firing of a shotgun constituted a crime involving moral turpitude, although it was not clearly established whether the offense was assault in the first degree or assault in the second degree. To the same effect, Matter of P----, 56031/543 (B.I. A, October 24, 1942).
All the other cases relating to section 242, which have come to our attention, do not clearly rule on the moral turpitude point and are not especially helpful in determining this question, because of the various incidental features involved in each case. In Matter of H----, A-1576135 (B.I. A, October 13, 1944), the court stated that it could not determine whether or not the crime defined in section 242 (3) was one involving moral turpitude, because the nature of the weapon used had not been disclosed. In U.S. ex rel. Ciarello v. Reimer, 32 F. Supp. 797 (S.D.N.Y., 1940), section 242 (3) and (4) are discussed, although the conviction in issue actually occurred in Italy with a vaguely reasoned analogy being made to the provisions of section 242.
Although the conviction in U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933) arose under section 242 (5), information was lacking about the specific charge involved in the conviction and the court made no definite ruling on the moral turpitude question. U.S. ex rel. Valenti v. Karnuth, 1 F. Supp. 370 (N.D.N.Y., 1932) also relates to section 242 (5), but the court does not discuss or rule on the moral turpitude question.
See also, U.S. ex rel. Griffo v. McCandless, 28 F. (2d) 287 (E.D. Pa., 1928), which is pertinent to this question but not conclusive on the point of moral turpitude.